Mrs. Smith Pie Co. v. Commonwealth, 426 A.2d 209

Opinion by

Judge Rogers,

Mrs. Smith Piе Company and its insurer, Centennial Insurance Company¹ (Mrs. Smith), have appealed from two orders of the Workmen’s Compensation Appeal Board (Board). The appeals have been сonsolidated for briefing, argument and disposition. We affirm.

On February 23, 1973, Melvin L. Wise was injured in the course of his employment with Mrs. Smith when oven cleaning acid splashed in his eyes, resulting in the complete loss of vision in Wise’s right eye. On March 14, 1974, Wise filed a claim petition for benefits for the permanent loss of his right eye pursuant to Section 306(c) of The Pennsyl vania Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §513 (Act). A hearing was held on September 13, 1974, before Beferee Clement J.. Cassidy, at which Wise testified. Beferee Cassidy continued the hearing until April 14, 1975, when Wise introduced the deposition of Dr. Aaron W. Mallin, a Board certified psychiatrist and nеurologist. Dr. Mallin’s unequivocal testimony was that there is no physiological basis for Wise’s condition but that the blindness in his right eye is a product of a psychological hysterical conversion directly related to the accident on February 23, 1973. Dr. Mallin also testified that Wise’s blindness is permanent. Beferee Cassidy again continued the hearings until March 8,1976.

Mrs. Smith did not offer any testimony or adduce any evidence at either the September ‍‌‌​​‌​​​‌‌‌‌‌‌‌‌‌‌‌‌‌‌​‌​​‌​‌‌‌‌​‌‌‌‌‌​​‌​‌‌​‌‌​‍13, 1974, or the April 14, 1975, hearing. However, on August 14, 1975,² Wise was examined at the request of Mrs. Smith by Dr. Nathan Schlezinger. Based on this examination, Dr. Schlezinger agreed with Dr. Mallin that Wise’s blindness was psychological; however, Dr. Schlezinger concluded that further tests conducted in a hospital would be necessary in order to ascertain whether or not Wise’s blindness was permanent.

Mrs. Smith took no action on Dr. Schlezingеr’s report until the March 8, 1976, hearing, when it asked Beferee Cassidy for a further continuance so that it might take and offer Dr. Schlezinger’s deposition for the record and in addition petition the Board for аn order that Wise be hospitalized for further testing and treatment. Beferee Cassidy refused the continuance on the ground that Mrs. Smith had had sufficient time in which to depose Dr. Schlezinger and to petition, the Bоard. Referee Cassidy then closed the record and on February 16, 1978, issued an opinion with an order awarding benefits to Wise for the permanent loss of his right eye. The Board, without taking additional evidencе, affirmed the award by order dated January 7,1980.

On May 25, 1976, more than nine months after Dr. Sehlezinger had examined Wise and more than two months after Referee Cassidy had closed the record, Mrs. Smith filed a petition with thе Board seeking an order directing Wise to submit to hospitalization for testing and treatment. The Board first granted the prayer of the petition but then vacated that order on Wise’s objection. The Boаrd then referred the petition to Referee Carl M. Lorine for a hearing, which was held on March 10, 1977. Dr. Sehlezinger testified at this hearing that he wanted to hospitalize Wise for ten days to two weeks in order tо perform certain tests, including the intravenous administration of a narco-hypnotic drug called tincture valerian, which Dr. Sehlezinger described as ‘ ‘ the most horrible, putrid stuff you ever saw.” Dr. Sehlezinger stated thаt the purpose of this drug is to make the patient suffer, thereby diminishing his repressed feelings of anger and aggression. Dr. Sehlezinger also testified that the drug had been removed from hospital use because it is sо acrid. Finally, Dr. Sehlezinger stated that his treatment of Wise might or might not effect a cure of his blindness. Referee Lorine issued an opinion and order dated January 11, 1978, denying the prayer of Mrs. Smith’s petition. The Boаrd, in an opinion and order dated January 4, 1980, affirmed Referee Lorine’s determination.

Mrs. Smith first contends that the Board’s affirmance of Referee Cassidy’s award of benefits was erroneous becausе, as a matter of law, the loss of the use of an eye due to purely psychological condition cannot be considered a permanent loss which would entitle a claimant to permаnent loss benefits under Section 306(c) of the Act. ‍‌‌​​‌​​​‌‌‌‌‌‌‌‌‌‌‌‌‌‌​‌​​‌​‌‌‌‌​‌‌‌‌‌​​‌​‌‌​‌‌​‍We do not agree. A work-related nervous disability or mental illness is a compensable injury within the meaning of the Act. De-Baldo Bros., Inc. v. Workmen’s Compensatiоn Appeal Board, 49 Pa. Commonwealth Ct. 632, 411 A.2d 1277 (1980); University of Pittsburgh v. Workmen’s Compensation Appeal Board, 49 Pa. Commonwealth Ct. 347, 405 A.2d 1048 (1979). Thus blindness caused by hysterical conversion occasioned by a work-related accident is a compensablе injury. Moreover, Referee Cassidy’s finding that Wise’s blindness is permanent is amply supported by the unequivocal and uncontradicted testimony of Dr. Mallin that, given Wise’s intellectual and psychological make-up, there is no hope of recovery.

Mrs. Smith next contends that Referee Lorine and the Board erred in denying the prayer of Mrs. Smith’s petition for hospitalization of Wise. Mrs. Smith correctly states that Seсtion 314 of the Act, 77 P.S. §651, gives a claimant’s employer the right to conduct one medical examination of a claimant, which in this case was done by Dr. Schlezinger on August 14, 1975. However, in the absence of a claimant’s consent, subsequent examinations of a claimant may be obtained only upon petition to the Board, which may order the employee to submit to such further examinations which the Board deems reasonable and necessary. Id. Mrs. Smith says that its request for the hospitalization ‍‌‌​​‌​​​‌‌‌‌‌‌‌‌‌‌‌‌‌‌​‌​​‌​‌‌‌‌​‌‌‌‌‌​​‌​‌‌​‌‌​‍of Wise was reasonable and necessary.

The decision to order further examination of a claimant “ ‘is a mаtter for the sound discretion of the compensation authorities, and nothing less than a manifest abuse of that discretion will justify the interference of the court.’ ” ' Grande v. Workmen’s Compensation Appeal Board, 43 Pa. Commonwealth Ct. 314, 315-16, 402 A.2d 315, 316 (1976) (quoting Harrisburg Railways Co. v. Workmen’s Compensation Appeal Board, 17 Pa. Commonwealth Ct. 485, 487-88, 333 A.2d 221, 222-223 (1975)). In the instant case, Mrs. Smith wished to subject Wise to extended hospitalization and to the administration of a “horrible [and] putrid” drug, which has been removed from use in hospitals and which would be of dоubtful benefit to Wise. We do not believe that the refusal to allow these procedures was a manifest abuse of discretion.

Finally, Mrs. Smith contends that it was denied due process by Referee Cassidy’s refusаl to grant a continuance on March 8, 1976; by Referee Cassidy’s issuance of an order awarding benefits to Wise prior to the disposition of Mrs. Smith’s petition for hospitalization; and by the Board’s refusal to rеmand the matter to Referee Cassidy for the introduction of Dr. Schlezinger’s testimony when the Board denied the prayer of Mrs. Smith’s petition for hospitalization.

We do not believe that either Refereе Cassidy’s refusal to grant Mrs. Smith a continuance for the taking of Dr. Schlezinger’s deposition or the Board’s refusal to remand the matter for the introduction of Dr. Schlezinger’s testimony constituted a denial of due process. Due process requires, inter alia, that a party have the opportunity to present its case. Seven months elapsed from the time Dr. Schlezinger examined Wise until the March 8,1976, hearing before Rеferee Cassidy. Mrs. Smith therefore had ample opportunity ‍‌‌​​‌​​​‌‌‌‌‌‌‌‌‌‌‌‌‌‌​‌​​‌​‌‌‌‌​‌‌‌‌‌​​‌​‌‌​‌‌​‍to depose Dr. Schlezinger prior to the March 8, 1976, hearing at which it could have offered the doctor’s deposition. Balancing Mrs. Smith’s desirе to present Dr. Schlezinger’s testimony against the desire of Wise to have his claim decided with a reasonable dispatch, we are constrained to say that the latter consideration preрonderates.

Similarly, neither Referee Cassidy’s refusal to grant Mrs. Smith a continuance so that Mrs. Smith could petition the Board for the hospitalization of Wise nor Referee Cassidy’s issuance of his order аwarding Wise benefits prior to the disposition of Mrs. Smith’s petition denied Mrs. Smith due process. Again, Mrs. Smith was aware for seven months prior to March 8, 1976, that further examination of Wise in a hospital would be necessаry.

We also note that the Board disposed of Mrs. Smith’s appeal from Referee Lorine’s decision denying the prayer of the petition for hospitalization before it decided Mrs. Smith’s appeal from Referee Cassidy’s decision awarding benefits. If the Board reversed Referee Lorine’s decision and granted the prayer of Mrs. Smith’s petition for hospitalization, it undoubtedly would have vacated Referee Cassidy’s award of benefits and remanded the matter back to Referee Cassidy for the receipt of Dr. Schlezinger’s testimony and the results of his hospital testing of Wise. Instead, the Board аffirmed Referee Lorine’s denial of the prayer of Mrs. Smith’s petition and we have held that this action was not an abuse of discretion. Hence, even if Referee Cassidy’s refusal to grant a continuance and his issuance of an order prior to the disposition of the prayer of Mrs. Smith’s petition for hospitalization was error, it was harmless.

Orders affirmed; an appropriate judgment order will be еntered.

Order

And Now, this 4th day of March, 1981, the orders of the Workmen’s Compensation Appeal Board dated January 4, 1980, and January 7, 1980, are affirmed. It is ordered that judgment be entered in favor of Melvin L. Wise and against thе defendants, Mrs. Smith Pie Company and its insurer, Centennial Insurance Company, for workmen’s compensation benefits for the permanent loss of the claimant’s right eye, in the amount of $97.32 per week for 285 weeks, beginning February 23, 1973, together with interest at the rate of ten per cent per annum on all deferred payments from the date due to the date paid. Defendants ‍‌‌​​‌​​​‌‌‌‌‌‌‌‌‌‌‌‌‌‌​‌​​‌​‌‌‌‌​‌‌‌‌‌​​‌​‌‌​‌‌​‍are further ordered to pay all mеdical expenses incurred by the claimant in the treatment of his right eye. Defendants are entitled to a credit for any payments already made to claimant for lost work time or for medical еxpenses. The defendants are further ordered to pay claimant’s counsel fees in the amount of ten per cent of claimant’s award, to be deducted by the defendants from claimant’s award and to be paid by the defendants directly to claimant’s counsel, Galfand, Berger, Senesky, Lurie & March.

Notes

1 Centennial Insurance Company is a member of the Atlantic Companies.

2 Some of the dates and characterizations of the proceedings contained in Mrs. Smith’s brief do not correspond to the record.

Case Details

Case Name: Mrs. Smith Pie Co. v. Commonwealth

Court Name: Commonwealth Court of Pennsylvania

Date Published: Mar 4, 1981

Citations: 426 A.2d 209; 57 Pa. Commw. 274; 57 Pa. Commonwealth Ct. 274; 1981 Pa. Commw. LEXIS 1201; Appeals, Nos. 589 and 590 C.D. 1980

Docket Number: Appeals, Nos. 589 and 590 C.D. 1980

Court Abbreviation: Pa. Commw. Ct.